The Texas International Law Journal has just announced the forthcoming publication of a very interesting set of papers on the law of military detention, exploring the relevance of the law of neutrality and notions of “enemy” status for this context. The lead paper is by Karl Chang of DOD-OGC, writing in his personal capacity. The responses are from Rebecca Ingber (on leave from the State Department’s Office of the Legal Adviser and currently serving as a CFR International Affairs Fellow at Columbia Law School) and Kevin Heller (professor at University of Melbourne Law School). I post the abstracts below in sequence (click on the links above, though, to get to the ssrn.com page providing you the option of downloading the full draft papers):

This Article presents “enemy” as a concept for defining the legal limits on military detention in the U.S. campaign against al-Qaeda. Existing frameworks have sought to define U.S. military detention authority in terms of “combatant,” a concept drawn from jus in bello — international law governing how enemies fight one another. Although helpful for informing who may be detained under the government’s war powers, “combatant” is not the correct legal concept for defining the limits of that authority. Instead, the correct legal concept is “enemy,” a concept that has been defined in the international law of neutrality — a species of jus ad bellum. Unlike jus in bello, which specifies the relations between opposing belligerents, neutrality law specifies the relations between belligerents and neutrals — those outside of the conflict. Neutrality law explains when non-hostile persons, organizations, and States forfeit their neutral immunity and acquire enemy status. Neutrality law’s role in defining who belligerents may treat as enemies in war is important not only as a matter of international law, but also domestic law. Interpreting the war powers conferred by Congress to be informed by the framework of duties and immunities in neutrality law balances, on the one hand, giving the President the authority necessary to wage war successfully and, on the other, ensuring that President uses the powers Congress grants only for the war that Congress has authorized. Lastly, this Article uses neutrality law’s framework of duties and immunities to describe who may be detained as an enemy in the ongoing war against al-Qaeda.

This article presents a defense of the complex though critical practice of applying jus in bello principles, in particular the principle of distinction between belligerents and civilians, to non-international armed conflicts such as the conflict with al Qaeda.

There have been many attempts over the last decade to provide legal justification for a broad system of detention authority in the conflict with al Qaeda. The United States Government and the Supreme Court have construed state action in this conflict in “law of war” terms, sanctioning long-term preventive detention of captured al Qaeda and Taliban belligerents in accordance with “longstanding law-of-war principles.” Despite the flexibility in this framework, some legal commentators and government officials have nevertheless over the years pressed for broader and broader interpretation of the state’s authority. The Supreme Court has dismissed some of these more aggressive efforts — holding, for example, that Common Article 3 of the Geneva Conventions provides some minimum baseline of protection to detainees in the conflict with al Qaeda — though, having laid the foundation for the framework and established certain basic principles, its intervention has become increasingly rare in recent years. The overarching legal architecture for this conflict is thus fairly well-settled today and moored to recognized legal principles in the laws of war, but there is significant work that remains in its application and in determining the outer contours of the framework. Yet in seeking to demarcate these outer limits, Karl Chang’s recent piece, “Enemy Status and Military Detention in the War against al-Qaeda,” proposes a different framework altogether and one that yet again attempts to broaden the sphere of lawful state action in this conflict.

In “Enemy Status,” Chang contends that the appropriate international law framework for determining the scope of the United States Government’s detention authority in the conflict with al-Qaeda is found primarily not in the law of armed conflict but rather in the historic law of neutrality. In his attempt to resolve unsettled questions regarding the Government’s authority under both international and domestic law, particularly the 2001 Congressional Authorization for Use of Military Force, Chang eschews reliance on the belligerent-civilian distinction currently employed by the Government and some courts and drawn from the law of armed conflict. Chang instead argues that the contours of military detention should be constructed predominantly around a determination of who is the “enemy,” which he views as defined by the law of neutrality.

Principles drawn from neutrality law and practice may inform aspects of how states assess the legal contours of conflict with non-state organized armed groups. In particular, the answer to the critical question Chang does not resolve — namely, where was the historic line between mere violations of neutrality and acts of belligerency? — is one of the most relevant insights we might draw from neutrality practice. Nevertheless, a framework based on the laws developed to govern relations with neutral states cannot simply supplant the laws developed to inform and constrain actions between and against belligerents.

America’s credibility in modern armed conflict turns in large part on its fidelity to recognized legal authorities and constraints. The trend in the U.S. federal courts of late has been to defer broadly to the Government’s authority in this realm. Ultimately, however, whether or not there is extensive judicial oversight, the United States must conform its actions with the international laws of war. In fact, the broad deference that the courts are at present willing to afford the Executive makes it all the more incumbent on the Government — as the last word in many cases due either to judicial deference or non-justiciability — to draw its own careful distinctions and review of the legality of its decisionmaking in these arenas. The United States’ respect for and compliance with the laws of war are essential for the well-being of our troops, the continued cooperation and good will of our allies, and for our legitimacy in seeking to enforce compliance by others. It may also be critical to maintaining the current good will and deference of the federal courts.

In his essay “Enemy Status and Military Detention in the War Against al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Conventional international humanitarian law (IHL) applicable in such conflict – Common Article 3 of the Geneva Conventions and the Second Additional Protocol – is silent concerning detention; it simply requires individuals who are detained to be treated humanely. Scholars have thus turned to a variety of legal sources to address the detention issue. Some have argued that detention in NIAC is governed solely by the rules of IHL applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHLR are all relevant to determining the scope of detention in NIAC.

Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy’, a concept that has been defined in the law of neutrality.” Indeed, in his view, “[t]he framework of duties and immunities in neutrality law give an overarching international law framework for U.S. military operations against al-Qaeda.”

This is a unique thesis. No scholar or state has ever taken the position that the law of neutrality applies to a transnational NIAC involving a terrorist group like al-Qaeda, much less that it provides the “overarching framework” for that type of conflict. And that is both the strength of Chang’s essay and its greatest weakness. De lege ferenda, the law as it ought to be, the essay makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the essay is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.